Gujarat High Court
Gurusharan Hiralal Barot vs The State Of Gujarat on 27 July, 2020
Equivalent citations: AIRONLINE 2020 GUJ 575
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/7769/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7769 of 2020
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GURUSHARAN HIRALAL BAROT
Versus
THE STATE OF GUJARAT & 3 other(s)
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Appearance:
KRISHNAN M GHAVARIYA(8133) for the Petitioner(s) No. 1
MR DHAWAN JAISWAL, AGP for the Respondent(s) No. 1,2,3,4
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CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 27/07/2020
ORAL ORDER
1. Learned Advocate for the petitioner relies upon oral order dated 05.02.2020 passed by this Court in SCA No.3100 of 2020 and urges this Court to pass similar order.
2. The case of the petitioner is that he was initially appointed as daily wager, the details of which have been enlisted by the petitioners at annexure-'A' to the petition together with his date of retirement.
3. Mr.Krishnan Ghevariya, learned counsel appearing for the petitioner, has drawn my attention to the pension payment orders issued in the case of each of the respective petitioners and submitted that the initial period of service of the petitioners to their date of regularization has not been counted as service for the Page 1 of 6 Downloaded on : Mon Jul 27 22:17:45 IST 2020 C/SCA/7769/2020 ORDER purposes of pension.
4. Prima facie, perusal of the pension orders indicate that the services rendered by the petitioners prior to their date of regularization appears to have been missed in calculating the pensionary benefits. Relying on a decision of this Court in the case of Executive Engineer Panchayat (Maa and M) Department vs. Samudabhai Jyotibhai Bhedi., reported in 2017 (4) GLR 2952, Mr.Ghevariya, learned counsel submits that by a decision rendered in this case, this Court has specifically held that for the purposes of computing the number of years of service, provisions of Section 25-B of the Industrial Disputes Act need to be taken into account. Relevant paragraph of the decision read as under:
"6 As is well known, under Government Resolution dated 17.10.1988, the Government decided to grant benefits of regularization and permanency to daily rated workers who had completed more than 10 years of actual service prior to such date, of course subject to certain conditions. One of the clauses in the said Government Resolution was that the benefit of regularization would be available to those workmen who had completed more than 10 years of service considering the provisions of section 25B of the Industrial Disputes Act. They would get benefits of regular pay scale and other allowances, pension, gratuity, regular leaves etc. They would retire on crossing age of 60 years. That the period of regular service shall be pensionable.
7. This Government Resolution led to several Page 2 of 6 Downloaded on : Mon Jul 27 22:17:45 IST 2020 C/SCA/7769/2020 ORDER doubts. The Government itself therefore came up with a clarificatory circular dated 30.05.1989, in which, several queries which were likely to arise were clarified and answered. Clause-6 of this circular is crucial for our purpose. The question raised was that an employee who had put in more than 10 years of service as on 01.10.1988, would be granted the benefit of Government Resolution dated 17.10.1988. In that context, the doubt was whether for the purpose of pension, the past service of completed years prior to regularization would be considered or whether the pensionable service would be confined to the service put in by the employee after he is actually regularized. The answer to this query was that those employees who had put in more than 10 years of service as per Government resolution dated 17.10.1988 would get the benefit of pension. For such purpose, those years during which the employee had fulfilled the provisions of section 25B of Industrial Disputes Act, such years would qualify for pensionary benefit.
8. two things immediately emerge from this clarification. First is that the query raised was precisely what is the dispute before us and second is that the clarification of the Government was unambiguous and provided that every year during which the employee even prior to his regularization had put in continuous service by fulfilling the requirement of having worked for not less than 240 days as provided under Section 25 B of the Industrial Disputes Act, would count towards qualifying service for pension. In view of the clarification by the government itself, there is no scope for any further debate. The petitioner was correct in contending that having put in more than 10 years of continuous service as a labourer in the past, he had a right to receive pension upon superannuation. This is precisely what the learned Single Judge has directed, further enabling the employer to verify as to in how may years he had put in such service and then to compute his pension.
9. Learned counsel Shri Munshaw for the Panchayat however drew our attention to some other clauses of the said clarificatory circular dated 30.05.1989. None of these Page 3 of 6 Downloaded on : Mon Jul 27 22:17:45 IST 2020 C/SCA/7769/2020 ORDER clauses have a direct bearing on the controversy at hand. These clauses merely refer to from which point of time such benefits may be available. It may be that benefits of regular services such as regular pay scale, leave, gratuity and pensionary benefits may be available only after regularization of an employee. However, this does not mean that his past continuous service would be wiped out for the purpose of of pensionary benefits. The stand of the authorities that only that service which the employee had put in after actual order of regularization would count for pension is thus in conflict with the Government circulars itself.
10 The issue can be looked from slightly different angle. As it likely to happen in many cases and appears to have happened in the present case, actual order of regularization may not be passed immediately upon an employee having put in 10 years of service for variety of reasons such as inaction on the part of the employee to press for such benefits, verification needed at the hands of the administration and sometimes, sheer inertia may delay actual regularization. Would that mean, the benefit of pension would be denied to an employee because after the belated regularization he did not have sufficient time to render 10 years of qualifying service? The answer has to be in negative."
5. In a subsequent decision, in the case of State of Gujarat vs. Suketu Amratlal Desai., this court relying on the decision of Bhedi(supra), reported in 2019 JX(Guj) 490 and various decisions held as under:
"10 Having considered the submissions made by the learned counsels for the respective parties what appears on record is that the Government Resolution dated 17.10.1988 granted the benefits of regularization to Rojamdars on completion of ten years of service with effect from 01.10.1988. Question of interpretation and clarification arose as a result of which, the government brought in a resolution dated Page 4 of 6 Downloaded on : Mon Jul 27 22:17:45 IST 2020 C/SCA/7769/2020 ORDER 30.05.1989. Clause 6 of the resolution dated 30.05.1989 unequivocally answers the question of date of calculation in the affirmative i.e. that for the purposes of calculating pensionable service, past service rendered prior to the regularization has to be taken into consideration for the purpose of pension. This, therefore, unequivocally demolishes the contention of the government that for the purposes of the payment of gratuity only the services rendered post 01.10.1988 needs to be accounted for.
11. Further the language of the resolution dated 24.03.2006 leaves no manner of doubt to sustain the finding of the learned Single Judge that the resolution is prospective and not retrospective. The learned Single Judge has considered the judgment in the case of Samudabhai Jyotibhai Bhedi (supra). Reading of the judgment in the case of Samudabhai Jyotibhai Bhedi (supra), unequivocally suggests that to a query that was specifically raised by virtue of the resolution dated 30.05.1989, the government clarification was unambiguous and provided that every year during which the employee even prior to his regularization had put in continuous service by fulfilling the requirement of having worked for not less than 240 days as provided under Section 25B of the Industrial Disputes Act, 1947, would count towards qualifying services for pension. The Court held that in view of the clarification by the government itself, there was no scope for any further debate. The learned Division Bench held that it was correct for the petitioners therein to contend that having put in more than ten years of continuous service as a labourer in the past the petitioner therein had a right to receive pension upon superannuation.
11.1 Considering the law laid down in the case of Samudabhai Jyotibhai Bhedi (supra), we cannot but take a view similar to one taken in the judgment of Samudabhai Jyotibhai Bhedi (supra). Accordingly, we find no reason to find fault with the judgment of the learned Single Judge wherein the learned Single judge observed that for the purposes of calculating the benefits of gratuity, services rendered prior to the date of regularization i.e. 01.10.1988 Page 5 of 6 Downloaded on : Mon Jul 27 22:17:45 IST 2020 C/SCA/7769/2020 ORDER needs to be considered."
6. Accordingly, in view of the position of law enunciated in the above two judgments, with the copy of this order, the petitioners shall submit a copy of this petition to the respondents within two weeks from today. On such petition being furnished, the respondent shall look into and reconsider whether the petitioners are entitled to the benefits of the decision rendered in by this court in the case of Executive Engineer Panchayat (Maa and M) Department vs. Samudabhai Jyotibhai Bhedi. (supra) and Suketu Desai (supra). This is particularly in view of the fact that prima facie, the Court feels that past period of service rendered by such petitioners prior to their regularization appears to have been missed while computing the pension. The respondents shall take decision in accordance with law keeping in mind the aforesaid decision within a period of six weeks from the date of receipt of the representation. In the event, the decision is adverse to the petitioners, it will be open for the petitioners to apply afresh. The petition is accordingly disposed of accordingly.
Direct service is permitted.
(A.Y. KOGJE, J) CAROLINE Page 6 of 6 Downloaded on : Mon Jul 27 22:17:45 IST 2020